Alternative dispute resolution is no longer alternative in any meaningful sense. Section 89 of the Civil Procedure Code directs courts to refer matters out for settlement. The Legal Services Authorities Act, 1987 gave statutory form to the Lok Adalat; the Arbitration and Conciliation Act, 1996 framed arbitration; the Mediation Act, 2023 completed the design. Every district court now houses a mediation centre, every quarter brings a National Lok Adalat, and every judicial office knows that settlements procured are counted. The ADR system is praised as indigenous. It is said that this is how India always resolved disputes; the village had worked it out long before the vocabulary arrived from elsewhere; compromise rather than contest is the older instinct. The colonial court was the interruption, and what is happening now is not experiment but restoration, of something that was ours and was right.

This essay examines the declaration: what the older system was and what made it hold, why the Constitution set it aside, why ADR returned when it did and at whose convenience, and what the arrangement now does to the person who walks into a court believing the law will decide his case. The vocabulary throughout is the vocabulary of dialogue. Whether a dialogue is what occurs across the table is the question the essay ends on.

The Older System

Before the courts came, disputes went to the elders. The village head, the caste panchayat, the father, the guild, the priest. They heard the matter, they pronounced, and the pronouncement held. It held because refusal was expensive. Not in court fees; in life. The man who rejected the elders' word met the hostility of the village, the withdrawal of his own family, exclusion from marriage negotiations, denial of the common well and the common path, and in the harder cases outcasting. Where there was nowhere else to go, exclusion was not an inconvenience. It was a sentence, and everybody carried it out at once.

So the old system worked through the instrumentality of coercion. Its authority was position, not reason: the elder over the young, the man over the woman, the dominant caste over the subordinate, the landholder over the landless. No uniform rule, no procedure, no standard of proof, no appeal. An elder was not always right. A caste head was frequently the interested party. Nor did any of it produce a reason that the next person could rely on. Each settlement began and ended in itself.

The restoration argument therefore borrows the old system's reputation for effectiveness while discarding the thing that produced it. Nothing today carries that sanction. The mediator commands no ostracism; the Lok Adalat bench cannot close anyone's well. An afternoon's persuasion in a room attached to a courthouse is now expected to do alone what an entire social order once did. When the elders spoke, the village stood behind the words. When the mediation centre speaks, nothing stands behind them except the length of the cause list.

What the Constitution Chose

The British replaced the older arrangements for structure, and also for control: written adjudication, rules of evidence, procedure, appeal, and a standard applied without reference to who the parties were. The imposition was imperial. It was also the first attempt at an impersonal adjudicatory system this subcontinent had seen.

In 1950 the framers were free to discard it. They were discarding a great deal else, and the older method was within living memory and would have cost nothing to revive. They kept the alien structure and refused the indigenous one, and the refusal was a matter of principle rather than convenience. The Preamble had promised justice, liberty and equality of status and opportunity, and Part III converted that promise into rights a citizen could enforce against the State itself. Such rights are worth nothing without a forum that can be relied on to enforce them against the State, and the court was kept to be that forum: separated from the executive, and independent at every tier. In the village there had been nothing to separate, since the elders were the authority and also the forum for disputes about the authority. The older method could supply none of this: a rule that applied to everyone regardless of who they were, a decider with no interest in the outcome, a standard fixed before the dispute arose, and a decision that bound the next case as well as this one. Article 40 shows the framers had not forgotten the village. They gave it self-government, not adjudication, and they placed even that among the non-justiciable directive principles.

What they kept, they converted: the form was inherited, the purpose was new. The court that exists today is therefore not a colonial comprehension of justice, and nothing in the Constitution treats it as one mechanism among several. Adjudication is not among its options. It is its function.

And that function is narrower than dispute resolution. A dispute that ends is not a dispute that is decided. The first can be achieved by exhaustion, by pressure, or by the weaker party giving up. The second requires a finding, a consequence, and a reason stated in public, which is what produces a rule the next litigant can rely on and a record against which the judge himself can be judged. The old system could not produce it. Neither can a settlement.

Why the Resurrection of ADR

ADR, whatever ancestry is now claimed for it, did not return because anyone reconsidered the constitutional question. It returned because the courts stopped coping, and each new instrument arrived at a moment when the arithmetic had worsened.

Begin at 1987, the year the Legal Services Authorities Act was passed, though it was brought into force only in 1995. In the same year the Law Commission, in its 120th Report on Manpower Planning in the Judiciary, recorded a ratio of about ten judges per million and recommended that it be raised to fifty. The recommendation was never implemented. The Lok Adalat was. By 1996, when the Arbitration and Conciliation Act replaced the statute of 1940, the ratio had barely moved and the docket had grown. In 2002 Section 89 returned to the Code of Civil Procedure. At the commencement of the Code in 1908 it had provided for the reference of pending suits to arbitration under the Second Schedule, and it was repealed in 1940 once a separate arbitration statute made it redundant. It stood empty for more than sixty years, and came back with a wider menu: arbitration, conciliation, judicial settlement including Lok Adalat, and mediation, on the court's own finding that elements of a settlement exist. That same year, in All India Judges' Association, the Supreme Court endorsed the Law Commission's fifty per million ratio of judges and directed that it be reached in a phased manner. Both things happened in 2002: the Court told the State to build the judiciary, and Parliament told the judge to send the case elsewhere. Only one of those directions was carried out.

The rest is a sequence. By December 2010 some 3.2 crore cases were pending in the High Courts and district courts together^[1]. By August 2019, more than 3.5 crore cases were pending across all courts^[2]. By September 2021, over 4.5 crore cases were pending, of which 87.6 per cent sat in the district courts^[3]. By July 2023 the figure crossed five crore^[4], and by the end of December 2025 it stood at about 5.39 crore, with 4.76 crore of it in the district courts^[5]. Across the eight years from 2015 to 2022, the Supreme Court's own report records, pendency in the district judiciary rose by 59 per cent while its sanctioned strength rose by 22 per cent^[6].

Set the instruments against that curve and the pattern is plain. The Lok Adalat in 1987, the Arbitration Act in 1996, Section 89 in 2002, the Mediation Act in 2023. Each arrived later than the last and each arrived on a higher number. Nothing in the sequence tracks a developing constitutional theory of settlement. It tracks a rising docket.

And the judiciary's own account of that docket does not describe a country in love with litigation. Of the 4.4 crore cases pending in the district and taluka courts in November 2023, 1.8 crore had not passed the stage of appearance and service of summons^[7]. Two of every five cases in the district courts were waiting not for a decision but for a piece of paper to reach a party. That is a failure of process servers, staff and infrastructure, and it cannot be settled away.

Faced with this, two institutions found a common interest. The State did not wish to pay for the alternative. A judiciary of the size the Court had asked for would require judges, buildings, staff, process servers, police coordination, infrastructure and execution machinery, financed year after year with nothing to show at the end of any particular one. The judiciary, for its part, did not wish to be measured solely by a disposal rate it could not achieve. ADR answered both difficulties at once. It gave the State a cheap reply and the judiciary a new metric. What could not be decided could now be settled, and settlement could be counted.

Therefore, the origin of the present regime is not jurisprudence, but arithmetic.

1. Ministry of Law and Justice, Government of India, statement on pendency as on December 2010, recording approximately 3.2 crore cases pending in the High Courts and subordinate courts. ↑

2. PRS Legislative Research, Examining Pendency of Cases in the Judiciary, on National Judicial Data Grid figures as accessed in August 2019, recording more than 3.5 crore cases pending across the Supreme Court, the High Courts and the subordinate courts. ↑

3. PRS Legislative Research, Examining Pendency of Cases in the Judiciary, on National Judicial Data Grid figures as on 15 September 2021, recording more than 4.5 crore pending cases, of which approximately 87.6 per cent were in the subordinate courts. ↑

4. Reply of the Minister of Law and Justice, Rajya Sabha, 20 July 2023, recording more than 5.02 crore cases pending across the Supreme Court, the High Courts and the district and subordinate courts. ↑

5. Reply of the Ministry of Law and Justice in the Lok Sabha, on National Judicial Data Grid data as on 31 December 2025, recording approximately 5.39 crore cases pending in all, of which approximately 4.76 crore were in the district and subordinate courts. ↑

6. State of the Judiciary: A Report on Infrastructure, Budgeting, Human Resources and ICT (presented 26 November 2023). The report records district judiciary pendency rising from 2,71,76,029 cases in 2015 to 4,32,93,727 in 2022, an increase of approximately 59 per cent, while sanctioned judge strength rose from 20,558 to 25,114, or approximately 22 per cent. ↑

7. State of the Judiciary, above n 6. The report records, as on 21 November 2023, approximately 4.4 crore cases pending in the district and taluka courts, 61.7 lakh in the High Courts and 79,593 in the Supreme Court, and further records that approximately 1.8 crore of the district and taluka court cases were at the stage of appearance and service of summons. ↑

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